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Enforcement of Patents on Geographically Divisible Inventions

An Inquiry into the Standard of Substantive Patent Law Infringement in Cross-Border Constellations


Agnieszka Kupzok

This work investigates the challenges of enforcement of patent rights in geographically divisible inventions. It considers aspects of technological progress which pose challenges to the established system of patent protection based on the territorial limitation of rights. The analysis focuses on substantive patent law, especially on the infringement provisions. It is carried out in the context of Internet-related inventions, which demonstrate an extraordinarily construed technical nature, namely geographical divisibility. This leads to the inquiry of whether the infringement standard is appropriate in relation to the technological development in ICTs.
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1. Introduction

← 20 | 21 →1. Introduction


The development of the Internet1 and Internet-based technologies has confronted legal academic community and policy makers with several issues. These range from cyberspace2 being declared an independent sphere of no national interests3 to prolific pirating of music.4 The Internet triggered, affected and accelerated the formation of new interactions, new technologies, new behavior and new thinking. Over the past three decades, many of these issues have been pointed out and several have been addressed. Governments and researchers worked on creating approaches dealing with the ephemeral, globally-spread and interconnected nature of the Internet.

← 21 | 22 → Despite the continued efforts, certain topics remain unresolved today and some of them may require major shifts in the accepted and established structures of legal, political, and economic international order. This research aims at addressing one of such issues – lying at the nexus of patent law and the Internet – namely the challenge in enforcement of patents on inventions enabled to function without geographical integration. The analysis focuses on the substantive patent law infringement provisions, which are applied in infringement proceedings, involving such patents. The specific inquiry into geographically divisible inventions is justified by nature of the applied technological solution, as such inventions pose an unprecedented challenge to the territorially-based system of patent protection, as will be explained below. The focus on geographically divisible inventions is justified as their nature ultimately challenges the underlying principle of patent law, namely its territorial dimension. Courts faced with patent infringement proceedings involving geographically divisible inventions underlined their being different...

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